EXHIBIT 99.2
SECOND AMENDED AND RESTATED VOTING AGREEMENT
SECOND AMENDED AND RESTATED VOTING AGREEMENT, dated as of this 10th day of
April, 2006 ("Agreement"), among each of the persons listed under the caption
"RAM Group" on Exhibit A attached hereto (the "RAM Group"), each of the persons
listed under the caption "Founders Group" on Exhibit A attached hereto (the
"Founders Group") and Tremisis Energy Acquisition Corporation, a Delaware
corporation ("Tremisis"). Each of the RAM Group and the Founders Group is
sometimes referred to herein as a "Group". For purposes of this Agreement, each
person who is a member of either the RAM Group or the Founders Group is referred
to herein individually as a "Stockholder" and collectively as the
"Stockholders".
WHEREAS, as of October 20, 2005, each of Tremisis, RAM Energy, Inc. (the
"Company"), a Delaware corporation, RAM Acquisition, Inc. ("Merger Sub"), a
Delaware corporation, and the Stockholders who are members of the RAM Group
entered into an Agreement and Plan of Merger (as amended by Amendment thereto
dated November 11, 2005, the "Merger Agreement") that provides, inter alia, upon
the terms and subject to the conditions thereof, for the merger of Merger Sub
with and into the Company, with the Company being the surviving entity and
becoming a wholly owned subsidiary of Tremisis (the "Merger");
WHEREAS, as of the date hereof, each Stockholder who is a member of the
Founders Group owns beneficially and of record shares of common stock of
Tremisis, par value $0.0001 per share ("Tremisis Common Stock"), as set forth
opposite such stockholder's name on Exhibit A hereto (all such shares and any
shares of which ownership of record or the power to vote is hereafter acquired
by any of the Stockholders, whether by purchase, conversion or exercise, prior
to the termination of this Agreement being referred to herein as the "Shares");
WHEREAS, at the Effective Time, all shares of Company Common Stock
beneficially owned by each Stockholder who is a member of the RAM Group shall be
converted into the right to receive and shall be exchanged for his, her or its
pro rata portion of the cash and shares of Tremisis Common Stock to be issued to
the Company's security holders as consideration in the Merger;
WHEREAS, as a condition to the consummation of the Merger Agreement, the
Stockholders have agreed, severally, to enter into this Agreement; and
WHEREAS, capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR DIRECTORS
SECTION 1.01 Vote in Favor of the Directors. During the term of this
Agreement, each Stockholder agrees to vote the Shares of Tremisis Common Stock
he, she or it now owns, or will hereafter acquire prior to the termination of
this Agreement, for the election and re-election of the following persons as
directors of Tremisis:
(a) Three (3) persons, (i) two (2) of whom shall at all times be
"independent directors," within the meaning of the NASDAQ rules, and (ii) all of
whom shall be designees of the RAM Group; with one (1) of such designees to
stand for election in 2007("Class A Director"), who shall initially be Xxxxx X.
Xxx; one (1) of such designees to stand for election in 2008("Class B
Director"), who shall initially be Xxxxxx X. Xxxxxxxx; and one (1) of such
designees to stand for election 2009 ("Class C Director"), who shall initially
be Xxxx X. Xxxxxxx (collectively, the "RAM Directors"); and
(b) One (1) person who shall be an "independent director" within the meaning of
the NASDAQ rules and who shall be the designee of the Founders Group, which
designee initially shall be Xxxx X. Xxxx, who shall be elected as a Class A
Director (the "Founders Director," and together with RAM Directors, the
"Director Designees").
Neither the Stockholders, nor any of the officers, directors, stockholders,
members, managers, partners, employees or agents of any Stockholder, makes any
representation or warranty as to the fitness or competence of any Director
Designee to serve on the Board of Directors by virtue of such party's execution
of this Agreement or by the act of such party in designating or voting for such
Director Designee pursuant to this Agreement.
Any Director Designee may be removed from the Board of Directors in the
manner allowed by law and Tremisis's governing documents except that each
Stockholder agrees that he, she or it will not, as a stockholder, vote for the
removal of any director who is a member of Group of which such Stockholder is
not a member. If a director is removed or resigns from office, the remaining
directors of the Group of which the vacating director is a member shall be
entitled to appoint the successor.
SECTION 1.02 Vote in Favor of Stock Option Plan. During the term of this
Agreement, each Stockholder agrees to vote the Shares of Tremisis Common Stock
he, she or it now owns, or hereafter acquires prior to the termination of this
Agreement, in favor of the adoption of the Parent Plan (as defined in the Merger
Agreement).
SECTION 1.03 Obligations of Tremisis. Tremisis shall take all necessary and
desirable actions within its control during the term of this Agreement to
provide for the Tremisis Board of Directors to be comprised of four (4) members
and to enable the election to the Board of Directors of the Director Designees.
SECTION 1.04 Term of Agreement. The obligations of the Stockholders
pursuant to this Agreement shall terminate immediately following the election or
re-election of directors at the annual meeting of Tremisis that will be held in
2008.
SECTION 1.05 Obligations as Director and/or Officer. Nothing in this
Agreement shall be deemed to limit or restrict any director or officer of
Tremisis from acting in his or her capacity as such director or officer or from
exercising his or her fiduciary duties and responsibilities, it being agreed and
understood that this Agreement shall apply to each Stockholder solely in his or
her capacity as a stockholder of Tremisis and shall not apply to his or her
actions, judgments or decisions as a director or officer of Tremisis if he or
she is such a director or officer.
SECTION 1.06 Transfer of Shares. If a member of the RAM Group desires to
transfer his, her or its Shares to a permitted transferee pursuant to the
Lock-Up Agreement dated October 20, 2005, executed by such member, or if a
member of the Founders Group desires to transfer his or its shares to a
permitted transferee pursuant to the Escrow Agreement dated as of May 12, 2004,
it shall be a condition to such transfer that the transferee agree to be bound
by the provisions of this Agreement. This Agreement shall in no way restrict the
transfer on the public market of Shares that are not subject to the Lock-Up
Agreement or the Escrow Agreement, and any such transfers on the public market
of Shares not subject to the provisions of the Lock-Up Agreement or the Escrow
Agreement, as applicable, shall be free and clear of the restrictions in this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby severally represents warrants and covenants as
follows:
SECTION 2.01 Authorization. Such Stockholder has full legal capacity and
authority to enter into this Agreement and to carry out such Stockholder's
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder, and (assuming due authorization, execution and delivery by
Tremisis and the other Stockholders) this Agreement constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms.
SECTION 2.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder will not, (i)
conflict with or violate any Legal Requirement applicable to such Stockholder or
by which any property or asset of such Stockholder is bound or affected, or (ii)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
right of termination, amendment, acceleration or cancellation of, or result in
the creation of any encumbrance on any property or asset of such Stockholder,
including, without limitation, the Shares, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation.
(b) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Exchange Act, and (ii)
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or materially delay
the performance by such Stockholder of such Stockholder's obligations under this
Agreement.
SECTION 2.03 Title to Shares. Such Stockholder is the legal and beneficial
owner of its Shares, or will be the legal beneficial owner of the Shares that
such Stockholder will receive as a result of the Merger, free and clear of all
liens and other encumbrances except certain restrictions upon the transfer of
such Shares.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by overnight courier
service, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other addresses as shall be specified by notice given in accordance
with this Section 3.01):
(a) If to Tremisis:
Tremisis Energy Acquisition Corporation
0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy No.: 000-000-0000
with a mandatory copy to
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopy No.: 000-000-0000
(b) If to any Stockholder, to the address set forth opposite his, her or
its name on Exhibit A.
SECTION 3.02 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.03 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
SECTION 3.04 Entire Agreement. This Second Amended and Restated Voting
Agreement amends and replaces in its entirety the Amended and Restated Voting
Agreement dated November 28, 2005 among the parties. This Agreement constitutes
the entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof. This Agreement may not be amended or
modified except in an instrument in writing signed by, or on behalf of, the
parties hereto.
SECTION 3.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 3.06 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 3.07 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court in Delaware.
SECTION 3.08 No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 3.09 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 3.10 Waiver of Jury Trial. Each of the parties hereto irrevocably
and unconditionally waives all right to trial by jury in any action, proceeding
or counterclaim (whether based in contract, tort or otherwise) arising out of or
relating to this Agreement or the Actions of the parties hereto in the
negotiation, administration, performance and enforcement thereof.
SECTION 3.11 Merger Agreement. All references to the Merger Agreement
herein shall be to such agreement as may be amended by the parties thereto from
time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TREMISIS ENERGY ACQUISITION CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Chairman and CEO
STOCKHOLDERS:
The Founders Group:
/s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
/s/ Xxxxx Xxxx
Xxxxx Xxxx
The RAM Group:
DANISH KNIGHTS, A LIMITED PARTNERSHIP
a Texas limited partnership
By: Dannebrog Corporation., a Texas corporation,
General Partner
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx Xxxxxx
Title: President
/s/ Xxxxx X. Xxx
Xxxxx X. Xxx
/s/ C. Xxxxx Xxxxxxx
C. Xxxxx Xxxxxxx
EXHIBIT A
STOCKHOLDERS
The Founders Group:
Name and Address Number of Shares
---------------- ----------------
Xxxxxxxx X. Xxxxx 1,008,334
0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
Xxxxx Xxxx 183,334
0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
The RAM Group:
Name and Address
----------------
Danish Knights, A Limited Partnership
c/o Xxxxxxx Xxxxxx Xxxxxx
0000 X. 00xx Xxxxxx
Xxxxx, XX 00000
Xxxxx X. Xxx
0000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
C. Xxxxx Xxxxxxx
000 Xxxxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
